Depositions shed some light on Swain lawsuit against Haberek

Stonington - In a sworn deposition last month, First Selectman Ed Haberek admitted sending a digital image of a naked man to Tracy Swain in January 2010, but said it was not him in the photo and he did not send it using his town-issued BlackBerry.

During more than two hours of questioning by Swain's attorney, Scott Camassar, on Sept. 26, Haberek maintained that he forwarded Swain the image in a piece of spam email from his home computer as a joke.

Transcripts of the deposition taken from Haberek, who is running for re-election, were completed on Oct. 14.

The transcript for Swain, who also was deposed on Sept. 26 in connection with a suit she has filed against Haberek and the town, was completed Oct. 16. The Day obtained copies Tuesday. The depositions, which contain graphic sexual language, are not part of the public court file.

Swain's suit claims Haberek sent her a "sexually graphic photo of himself" using his town-issued BlackBerry while in his Town Hall office on the night of Jan. 12, 2010. Haberek has denied the claim. State police investigated and determined that Haberek had not committed a crime.

Swain, of Pawcatuck, says the experience has caused her continued emotional distress and physical illness and has worsened the migraine headaches she has had since age 9.

Haberek's attorney, Dado Coric, called it "horribly inappropriate" for someone to have leaked Haberek's deposition to The Day.

"This is clearly an attempt to manipulate the media into publishing a bad story (about Haberek) right before the election and trying to hurt his ability to get re-elected," he said Tuesday.

Coric "guaranteed" that once the case is resolved, Haberek will proceed with a claim of vexatious litigation against Swain. He said that even if the case is settled, Haberek would not agree to release any claims he could have against her.

Haberek said during the deposition that he assumed Swain would have known the photo was not of him because he weighed 306 pounds at the time and the photo was of a "model, cut type gentleman."

But Camassar pointed out that in the transcript of his and Swain's Facebook chat on the night of Jan. 12, 2010, Haberek wrote, "I took a pic of my private with the camera on Sunday when I was alone."

Haberek also said he asked Swain to take an "intimate photo" of herself and send it to him, but she declined.

He testified that the transcript shows that Swain asked him to send her the photo, and that after he sent it, she responded "Okay" and then "Nice" on two occasions.

He said he then wrote, "Sorry if I offended you" and Swain responded with "Offended what?" He took to mean she wasn't offended, he said.

During questioning by Coric, Swain has a much different description of the photo, which she described as "gross."

She said she believes the photo was of Haberek because of the presence of his Town Hall chair and desk. She said the photo was of a man naked from the waist down with his legs spread. She admitted she had no way of proving it was a photo of Haberek. She has said she then deleted the photo. She added that during the evenings, Haberek would chat online with her from Town Hall.

When questioning Swain about her comments that the photo was "horrible, stressful and inappropriate," Coric asked Swain why she immediately sent the photo to a Facebook friend with the title, "Hello. Do you need a laugh?"

The transcript of the Facebook chat shows the two women joking about the photo.

"What did you find humorous about this horrific picture that you received that now you are joking about it with your friend and telling them that you laughed ... some 10 to 15 minutes after you received this horrific picture?" Coric asked.

"Laughter is a great stress release," Swain responded.

Coric also asked Swain why she continued sexual conversations with Haberek after she said he had kissed her in December 2009 at a Route 184 parking lot, an experience she said made her want to shower, wash her face and brush her teeth.

"I was a woman who was not getting attention from her husband at the time," she said.

Haberek said he and Swain were chatting on Facebook that night when he sent the email and that he did not recall telling police when they used a search warrant to seize his BlackBerry and work computer that he had used his home computer to send the image.

While he originally told police he had sent the photograph to Swain via Facebook, Haberek said in the deposition that he was confused at the time and that was not true.

Swain, who is seeking $500,000 in damages, has said publicity from the case has caused friends and relatives to shun her and her children to lose friends because their parents don't want them to associate with her children.

She said she also has not been able to attend her children's school events because of fear of running into Haberek.

Elsewhere in his deposition, Haberek testified that he and Swain were both having trouble in their marriages when they began to have "mutual, consenting adult" conversations of a sexual nature after the November 2009 election.

Camassar asked Haberek in the deposition if he had heard the term "phone sex" and understood what it meant.

"I guess it would be talking on the phone and self satisfaction, I guess. Something like that," Haberek answered.

"Did that ever occur in any of your discussions with Tracy?" Camassar asked.

"Yes, I guess you would say," Haberek answered. "But not on, let me clarify, not on the phone." Haberek said their online chats involved suggestive language.

He also testified that in July 2010, he received a confidential letter from Camassar stating that Swain would be willing to settle her claims quietly for $95,000, "in order to spare your family the pain and embarrassment that would ensue from a public spectacle."

Haberek said he called his attorney and later checked to see whether his homeowner's policy would cover such a claim, which it does not.

Haberek also said that if he had used his town-issued BlackBerry to send the photo, which he denies, he was not sure whether the town policy regarding harassment and limits on personal use of Internet and email with town equipment would apply to him.

He said whether an employee has violated the policy "is determined by management and I am management."

Haberek said what occurred does not violate the town ethics policy because it did not involve town equipment.

"My personal life - I have a personal life, and it has no bearing on my town performance or my town position, my job," he said.

Camassar also asked Haberek about a September story in The Day in which he stated that he had a document, which he said he would not release, that proved he never sent any photo to Swain. Haberek said the story was inaccurate.

Swain claimed Haberek made the case public by having town labor attorney Michael Satti try to block the release of his cellphone records.

When questioned about the lawsuit at last week's Board of Selectmen candidates debate, Haberek declined to comment because of the pending litigation. He is scheduled to debate Republican challenger Glee McAnanly at 7 tonight at the Pawcatuck Neighborhood Center.